States say Alvogen lawsuit is part of a 'guerilla' war against the death penalty

Nevada is pushing to execute a convicted murderer, but drugmakers say the state obtained medicines for the procedure under false pretenses. (Pixabay)

In a battle over lethal execution drugs manufactured by pharma companies, 15 states have backed Nevada in a case alleging drugmaker Alvogen filed a meritless lawsuit only to delay an execution procedure as part of a “guerilla war against the death penalty.” Alvogen, for its part, contends the state obtained its medicine under false pretenses.

Alvogen filed a lawsuit last month alleging the state fraudulently obtained midazolam for the execution of convicted murder Scott Raymond Dozier, according to the Nevada Independent. Nevada has pushed back, and the fight has made its way to the state’s Supreme Court.

This week, 15 other states—Arkansas, Alabama, Arizona, Florida, Georgia, Idaho, Indiana, Louisiana, Missouri, Nebraska, Oklahoma, South Carolina, Tennessee, Texas and Utah—filed an amici curiae brief to back Nevada. In their brief, the states wrote that Alvogen’s lawsuit represents “little more than an end run around state laws that prevent lower courts from staying executions.” Alvogen didn't immediately respond to a request for comment.

As the battle plays out, a judge has stayed the execution of Dozier. Attorneys for the states supporting Nevada wrote that the court should “dissolve the stay of execution” so Alvogen doesn’t succeed with its strategy.

Capital punishment procedures involve a great deal of legal complexity, they wrote, and they believe “if Alvogen is allowed to succeed, there is a substantial risk that pharmaceutical companies—prodded by anti-death penalty activists and the defense bar—will flood the courts with similar last-minute filings every time a state attempts to see justice done.”

Meanwhile, Hikma has joined the fight on Alvogen’s side. The company manufactures fentanyl that Nevada has identified as one of three components to its lethal injection drug for the execution. This week, Hikma filed an emergency petition to appear as a real party of interest, which the court granted. Now, the drugmakers have until Monday to file their responses to the states’ arguments.

The legal developments come after a Nebraska lawmaker urged Pfizer to sue that state over its use of the company’s drugs in a planned lethal injection procedure. Pfizer has a company policy that its drugs are not to be used in capital punishment procedures, but as of last month it hadn’t filed suit against Nebraska. Nebraska state Sen. Ernie Chambers urged the drugmaker to initiate a legal action and stop a planned execution on Aug. 14.

A Pfizer representative said the company's "records do not show any sales of any restricted products to the Nebraska Department of Corrections. We are again asking the Nebraska DOC to return any Pfizer restricted product.”